A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.

In his interesting article last week (‘Will the Detainee Inquiry be human rights compliant?’, 8 August) Matthew Flinn queried our claim that the Protocol fails to meet the requirements of article 3 ECHR. Notwithstanding the government’s own statement that it doesn’t intend for the Inquiry to comply with article 3, Flinn set out various arguments to suggest that the Protocol might nonetheless comply with article 3 in any event.

Before dealing with those arguments, it’s worth noting that our letter of 3 August was hardly a bolt from the blue for the Inquiry. JUSTICE and the other NGOs have been meeting and corresponding with its team pretty much since its inception, and we’ve been mindful from the outset that the Inquiry would have to deal with some very thorny issues of disclosure, see e.g. our letter of 8 February 2011 to the Inquiry team, which sets out in detail our view of what an effective investigation under article 3 involves. Nobody was under the naïve belief that everything would be conducted completely in open session.

Nor is the Detainee Inquiry the only judicial proceeding in recent times to have grappled with difficult issues concerning what can be made public: the Baha Mousa Inquiry, the 7/7 Inquest and the Binyam Mohamed case are just some of the most recent examples. Indeed, in our dealings with the Inquiry, we were keen to stress that there was a wide variety of potential mechanisms that might be adopted to balance the interests of national security, on the one hand, with the need for the Inquiry to be as transparent and open as possible, on the other.

What is striking about the Protocol, though, is how little the government seems to have learnt from recent cases about how that balance should be struck. For a start, no evidence will be given in public by current or former members of the security and intelligence services, other than the Heads of each service, even if the evidence they give concerns matters already in the public domain. Any questioning of witnesses from the services (other than their directors) will take place entirely in closed session, to be conducted by counsel to the inquiry, with no opportunity for meaningful participation by the detainees themselves or their lawyers. The Inquiry will have no power to compel witnesses to appear and, despite the plainly international nature of the inquiry, does not plan to take evidence from overseas witnesses.

These constraints may seem remarkable enough but they are compounded by two further limitations that can only be sensibly described as crippling. First of all, the Inquiry has committed itself to respecting ‘the understandings and commitments made or given by Her Majesty’s Government, including through its intelligence and security agencies, to the authorities and/or agencies of any foreign government concerning the confidentiality, security and protection against public disclosure of any information to which those understandings and commitments relate’ (Protocol, para 9(b)). This better known as the ‘control principle’: the idea that British courts must respect the undertakings that the UK government has given to foreign intelligence agencies, in order to preserve cooperation on intelligence matters. So, for example, if the CIA passes a document to MI6 with the condition that it should not be made public, a UK judge should not order its disclosure. The primary justification for this is that, were MI6 forced to breach its undertaking, the CIA might be less willing to pass us vital information in the future.

Superficially, it might seem reasonable for the Detainee Inquiry to agree to this restriction. But what it means in practice, however, is that foreign intelligence agencies will have a veto over what information the Inquiry can make public. If, for example, the CIA has passed material to the UK indicating the waterboarding of detainees, it’s a safe bet that the US government won’t readily agree for this to be made public by an Inquiry in Britain. Which is exactly what happened in the Binyam Mohamed case, and precisely why the Court of Appeal rejected the Foreign Secretary’s submission that the control principle was absolute in that case. The same goes, of course, for UK cooperation with places like Pakistan, Jordan and Saudi Arabia: the Inquiry will be obliged to respect their confidences, no matter how inquitious the conduct it conceals.

The second and even more sweeping limitation is the fact that it is the government, rather than the Detainee Inquiry itself, which will have the final word on what undisclosed material can be made public (see paras 11-17 of the Protocol). So even if the Inquiry were to change its mind, disregard the control principle, and seek to disclose some classified material in the public interest, the Cabinet Office would still be able to block disclosure.

The contrast with other recent cases involving national security couldn’t be more stark. In the Binyam Mohamed case, for instance, a special advocate was appointed to represent the interests of Mr Mohamed during the closed parts of the proceedings but he was also represented by his counsel and solicitors in the open sections. Not only did the court set out in some detail the facts of Mr Mohamed’s detention but it also allowed the cross-examination of Witness B, a serving MI5 agent who had interviewed Binyam Mohamed during his detention in Karachi, by Mr Mohamed’s counsel. Witness B was, of course, anonymised and the cross-examination conducted in camera. Nonetheless, the transcript of the cross-examination was subsequently made public and is available online. Officers from MI5 and MI6 have also given evidence, albeit anonymised and behind screens, in the open sessions of SIAC proceedings, control order cases and in the 7/7 inquest. In each of those proceedings, they have been subject to cross-examination from counsel representing the defendants and, in the case of the 7/7 inquest, the victim’s families. As for gathering evidence, even a magistrates court can compel a witness to appear, but apparently this is something the Inquiry will have no power to do.

More to the point, when the government challenged the Divisional Court’s decision in the Binyam Mohamed case to make public previously redacted paragraphs of an earlier judgment which made reference to MI6’s knowledge of the torture of Mr Mohamed by US authorities, the Court of Appeal ruled that is was for the courts to have the final word on what can and cannot be disclosed in the public interest. As the Lord Chief Justice, Lord Judge, said in his speech:

[I]n our country, which is governed by the rule of law, upheld by an independent judiciary, the confidentiality principle is … subject to the clear limitation that the government and the intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so [emphasis added].

If these principles and procedures are acceptable in a Norwich Pharmacal application, however, the question then becomes why should they be necessary for the purposes of the Detainee Inquiry? As the Master of the Rolls indicated in the now infamous paragraph 168 of his judgment in the same case, some MI5 officials:

appear to have a dubious record relating to actual involvement [in the mistreatment of detainees], and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others ….Regrettably, but inevitably, this must raise the question whether any statement in the [public interest immunity] certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services’ advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.

By contrast, the Detainee Inquiry’s Protocol requires it to respect the control principle in its entirety, and prevents MI5 and MI6 officials to being cross-examined by anyone other than the Inquiry’s counsel. And in the unlikely event that the Inquiry should determine that undisclosed material should be made public in breach of the control principle or for any other reason, the Cabinet Office rather than the Inquiry will have the final word.

In its defence, the Detainee Inquiry has said that its procedures are little different from those set down by the Inquires Act 2005, and Flinn cites section 19 of the Act as support for his claim that the government has ‘always had the power to place restrictions on disclosure in the public interest’.

It is certainly true that section 19 involves similar restrictions to the Protocol but that hardly amounts to proof of the compatibility of either provision with the requirements of article 3. Indeed, at the time of its enactment, the 2005 Act was notorious for enabling the relevant Secretary of State to limit the scope of independent inquiry, as well as to make extensive use of closed proceedings. One retired Canadian Supreme Court Justice, Mr Justice Cory, who had been jointly appointed by the British and Irish governments in 2002 to conduct an inquiry in Northern Ireland into extra-juducial killings, wrote a letter to a US Congressional investigation shortly before the 2005 Act was passed in which he said that the Act’s restrictions would ‘make a meaningful inquiry impossible’ and amount to ‘an intolerable Alice in Wonderland situation’. He added that he ‘could not contemplate any self-respecting Canadian judge accepting an appointment to an inquiry constituted’ under the Act.

In light of such criticisms, it is difficult to see how the Detainee Inquiry could consider that the 2005 Act was a model worth emulating. As Maurice Kay LJ noted in the 7/7 inquest appeal, the fact that proceedings are inquisitorial ‘does not diminish their context as essentially judicial procedures which are governed by the principle of open justice’ (R(Secretary of State for the Home Department v Assistant Deputy Coroner for West London [2010] EWC 3098 at para 24).

Flinn refers to the Court of Appeal’s judgment of R(D) v Secretary of State for the Home Department [2006] EWCA Civ 143 as support for the argument that cross-examination of witnesses by counsel representing families, etc, is not always required. It is correct, of course, that article 3 does not require an identical approach to be taken in every case: the test, as laid down in Edwards v United Kingdom (2002) 35 EHRR 19 is whether the victim is involved in the procedure ‘to the extent necessary to safeguard his or her legitimate interests’ (para 73).

But whether article 3 requires an inmate’s family own counsel to cross-examine prison officials in relation to his near-suicide is one thing. The Detainee Inquiry, however, is concerned with allegations of complicity by UK officials in torture in circumstances where, in several cases, the detainees were face to face with the officials themselves. They plainly have a legitimate interest in hearing the testimony of those officials and putting their own version in reply. Counsel for the Inquiry may be able to put questions to the witnesses in closed session but she will, in the words of Lord Bingham, be ‘taking blind shots at a moving target’ unless the detainees themselves are properly represented, able to hear the testimony and confirm identification, etc. It is impossible to see how anything less than direct participation of the detainees could satisfy the investigative obligations of article 3 in these circumstances.

Flinn also says that, when considering whether the Inquiry allows for sufficient public scrutiny, ‘objectively determining this issue obviously has to take into account the context’. This is entirely right. But the relevant context is not just that the Inquiry involves consideration of the inner workings of the intelligence services. The relevant context is also how similar investigations into those workings have been handled by the UK legal system up until now.

The European Court of Human Rights is unlikely to be impressed by the submission that the Protocol’s restrictions are necessary in the interests of national security when the Divisional Court and the 7/7 Inquest were able to conduct their own investigations into the activities of the intelligence services in a much more open manner.

Neither will the Strasbourg Court be impressed by the blanket restriction on intelligence officials giving evidence in public or being cross-examined by the detainees’ lawyers, when MI5 officials have already been cross-examined publicly in other UK proceedings. Lastly, it seems deeply unlikely that the Court would agree that a judge-led investigation into allegations of serious wrong-doing by government officials could be subject to various vetos on disclosure – both those of foreign governments under the control principle and our own Cabinet Office under the Protocol – and still remain independent.

All of this assumes, of course, what the government has thus far denied: that the requirements of article 3 ECHR and the UN Convention against Torture even apply to the Detainee Inquiry. This explicit failure of the Inquiry to meet international standards is very much at odds with the Prime Minister’s own statement in July 2010 that, ‘our reputation as a country that believes in human rights, justice, fairness and the rule of law…risks being tarnished’. In this context, it is worth recalling the 1967 warning of Lord Justice Salmon, who as chair of the Royal Commission on Public Inquiries strongly criticised the use of public inquiries sitting mostly in secret:

The public may be left with the feeling that the Inquiry, if behind closed doors, is no more than what is sometimes referred to as ‘the usual whitewashing exercise’, – the odds against any such tribunal being able to establish the truth, if the truth is black, are very heavy indeed. Any government which in the future adopts this procedure will lay itself open to the suspicion that it wishes the truth to be hidden from the light of day.

Lord Salmon’s warning is echoed in the more recent remarks of the Master of the Rolls, Lord Neuberger, in the Al Rawicase ([2010] EWCA Civ 482 (para 56)) concerning the proposed use of closed material in the civil claim for damages brought by the Guantanamo detainees:

While considering practical considerations, it is helpful to stand back and consider not merely whether justice is being done, but whether justice is being seen to be done. If the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were to be found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done. The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.

As one of the NGOs that wrote to the Detainee Inquiry last week, we stress again that we have always wanted the Detainee Inquiry to be a success. The UK plainly needs a robust, credible and independent investigation into the allegations that have been made. But participating in the Inquiry under the Protocol as it currently stands would be to no-one’s benefit. There is not the slightest doubt in our minds that the Protocol does not comply with article 3 ECHR and to proceed otherwise would be a disservice to everyone concerned.

Eric Metcalfe is a barrister and the director of human rights policy at JUSTICE, the UK section of the International Commission of Jurists.

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